Wife v. Miller
| Decision Date | 01 January 1852 |
| Citation | 7 Tex. 468 |
| Parties | PORTER AND WIFE v. MILLER. |
| Court | Texas Supreme Court |
Care must be taken to distinguish between those principles of common law which are incidental to particular forms of action and those which are independent of the form of action; the latter only being applicable in our system, which does not recognize different forms of action.
Where there is a controversy about specific property, if the possession of the defendant be wrongful in the popular acceptation of the term, if it be inequitable and unconscientious, acquired, for instance, in violation of a trust, or by force, violence, or fraud, he should, in all events, be responsible for the value of the property. But if he hold by title acquired in good faith, if his claim be not destitute of equity, or have probable foundation in law, if it be conscientious, he cannot be treated as a willful wrongdoer, not relievable even as against the acts of Divine Providence. (Note 65.)
Circumstances which constituted a case of unconscientious detention on the part of the defendant.
The mere fact that a rule is inconvenient is no argument against its justice or propriety, where it is necessary in order to decide according to the very right of the parties.
Where the petition described and claimed a slave as the separate property of the wife, and the writ of sequestration described him as the property of the plaintiffs, (the husband and wife:) Held, That the writ was properly quashed.
Where, after a writ of sequestration had been quashed on account of a variance between it and the petition, the plaintiff asked leave to amend the writ by the petition, it was held that leave should have been granted, but that if the bond had followed the mistake in the writ there might have been more difficulty.
Informality or mistake in a sheriff's return may be corrected at any time under the direction of the court, even after the return has been quashed at the same term because of the informality or mistake.
Appeal from Victoria. This was an action for the recovery of a slave named George, the separate property of the appellant Persia A. Porter, wife of her coappellant John T. Porter. The plaintiffs prayed judgment for the said slave, and damages for his detention, for a sequestration, and also for general relief. The negro was drowned while in possession of the defendant, during the pendency of the suit, and the fact was set up by an amendment to the defendant's answer.
The plaintiff Persia claimed under a deed of trust, by which certain notes and bonds, and the moneys to be collected therefrom, and the property to be purchased with their proceeds, were limited to the sole and separate use of the said Persia, not subject to the control or liable to the debts of her husband; and the mother of the boy George was purchased with the funds thus placed in trust. This deed was recorded in 1829, in Madison county, Tennessee; in Bastrop county, in Texas, in the year 1840; and in Victoria county, on the 8th of April, 1847.
On the 24th March, 1847, the boy was sold by the plaintiff, John T. Porter, to the defendant; and in the bill of sale it is stated that the slave was then in the possession of a Mr. Jenkins, and that the defendant should have him at the expiration of his term of hire, which would be in about twenty days.
A writ of sequestration was issued, but was quashed on motion of the defendant, upon the ground that the writ described the boy George as “the property of the petitioners,” whereas the petition described him as the separate property of the plaintiff, Persia A. Porter. The return of the sherill upon the writ of sequestration was also quashed, upon the ground that the sequestration itself had been quashed, and that it did not state how the writ had been executed. The defendant had replevied the property, but after the writ of sequestration had been quashed the court quashed the defendant's replevin bond. To all the above rulings the plaintiffs excepted, at the same time asking leave to amend the writ of sequestration by the petition, and leave for the sheriff to amend his return so as to show the facts; leave refused.
On the trial, Jenkins testified that he received a note from Mrs. Persia A. Porter, directing him not to let the defendant have the boy; that the defendant came to witness and asked him to let him have the possession of the boy, and that witness might have him of defendant as long as he wished him; that defendant presented a written order for the boy, purporting to be from John T. Porter; that witness refused to let defendant have the boy, and showed or told him of the notice given witness about the boy, from Mrs. Porter; that defendant said the boy was his; and on the very night the month was out the boy was missing, and the witness heard that the defendant had him. On May 12, 1847, about a month after the negro went into the possession of the defendant, a written demand for his restoration was made by the plaintiff, Persia A. Porter.
It was proved that the husband, John T. Porter, and the defendant were considerably intoxicated at the time of the execution of the bill of sale--one of the witnesses refusing to attest the contract, from his belief of the incapacity of the parties. Another witness thought the parties fully understood what they were doing. The consideration for the bill of sale was a bond for title to a part of a certain tract of land executed by the defendant in favor of the said John T. Porter. The plaintiff attempted to prove that the land pretended to be exchanged for the boy had been afterwards sold by the defendant to some other person, under a title with general warranty.
The court charged the jury that the measure of damages was the value of the negro at the time of the trial, and the value of the hire of the negro up to the time of his death, from the time of demand made; to which instruction the plaintiffs excepted.
Verdict and judgment for the plaintiffs for the hire of the negro only. Motion for new trial overruled. Plaintiffs appealed.
Gillespie & Sayles, for appellants.
court as to the measure of damages was clearly erroneous, and had a most important bearing. The verdict of the jury placed the ownership of the property beyond controversy; and no rule of law is clearer than that the measure of damages is the value of the property at the time of the conversion, with interest from that time to the time of the trial. (2 Greenl. Ev.; 4 Pick. R., 466; 7 Cow. R., 294; 14 Johns. R., 128.) And the destruction of the property pending suit does not exonerate the wrongdoer. (Carrel v. Early, 4 Bibb R., 270; Gentry v. Barnett, 6 Mon. R., 115.)
Here a conversion was clearly proved; the defendant was notified that the negro belonged to the plaintiff Persia, and forbidden to take him. There was also a demand and refusal to deliver, so that the liability of the defendant was fixed long before the commencement of the suit. .)
The objections to the writ were unfounded, as there was no variance in the description of the property. In both petition and writ the negro is described by name, age, and complexion. The property is sufficiently identified in each; there could be no possibility of a mistake. Under no circumstances could the defendant be prejudiced by a wrong levy under the writ. The return of the sheriff was as full as required by law. At any rate it was competent for the court to permit the writ and return to be amended.
A. H. Phillips, for appellee. The death of the negro, occurring without any default, abuse, or mismanagement on the part of the defendant in promoting the death, was a bar to a recovery of his value. It could be plead in detinue. (Bethea v. McLennon, 1 Ired. R., 523.) In this action, the judgment was in the alternative, and, consequently, the value of the specific property was estimated at the time of the verdict. (Penny v. Davis, 3 B. Mon. R., 313.) That the value of the slave in this case ought not to be estimated as in a case of trover and conversion, as contended by the appellnats, is evident--
First. From the petition. The prayer is for “a judgment for said slave, and damages for the detention of said slave, and for costs;” this shows that the action is in the nature of detinue and not of trover.
Second. From the statute of 1848. (Hart. Dig., p. 862.) The suit was brought under the second head of the 1st section, and not under the fifth head; for no force or violence is charged against the defendant. It is, under this head of the act, a simple trial of the right of property, as much so as a case in ejectment.
Suppose the complainant gives the bond as required in the second section, and fails to recover, and the slave dies in the hands of the sheriff, would the complainant be responsible for the act of God? Is not the sheriff in such case the agent for the true owner? And in case of death must not the owner bear the loss, as much so as the true owner of land swallowed up by an earthquake during the pendency of a suit in ejectment? The sheriff, under the 7th section of the act, is responsible for human acts, but not for the act of God. So the defendant, if he replevy under the 6th section of the act, binds himself not to do what the complainant charges in his affidavit. He assumes to indemnify the other party for his own wrongful act, contemplated by the affidavit, but not for the act of God. (See Wheeler on Slavery.) The cases in Wheeler (which is not in town) are precisely in point, and say that in bonds of this class the parties do not intend to stipulate for the act of God; it would be impious. To insist on such construction would seem to justify a party in...
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